01/30/2013

Greve on the Recess Appointments DecisionMike Rappaport

Michael Greve is not enthusiastic about the D.C. Circuit's recess appointments decision. Let me just make two quick responses here. Michael says

I’m
not a great fan of hanging too much on definite or indefinite article
(“the,” “a”), for statutory or even constitutional purposes. The court’s
opinion looks a tad doctrinaire, and it upsets recess appointment
arrangements that have been common for many, many decades (although not,
Judge Sentelle trenchantly notes, the first several decades of
constitutional practice).

First, while the court relied on "the
recess of the Senate," my article did not place much, if any, reliance
on that aspect of the language. The recess of the Senate in my view is
somewhat ambiguous -- it could simply refer to the state of the Senate
being in recess. But there are many additional strong reasons to
reject the view that allows intrasession recess appointments. That
said, I don't really see why one would ignore the definite article in
interpretation generally. The framers of provisions used language and
we can't just ignore the rules and practices of that language.

Second,
it is true that the decision upsets arrangements that have been common
for many decades, but so what? Are there any significant reliance
interests at stake in this area? No. Lets repeat that -- NO. So why
follow modern interpretations that are inconsistent with the senatorial
check that the Constitution places on the President?